SCA/839320/2008 2/ 2 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8393 of 2008 ========================================================= UNION OF INDIA - Petitioner(s) Versus VIJAY KALA P O A HOLDER OF KAPURCHAND - Respondent(s) ========================================================= Appearance : MR BIPIN I MEHTA for Petitioner(s) : 1, NOTICE NOT RECD BACK for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/09/2008 ORAL ORDER
1. The petitioner Union
of India has challenged the order dated 15.02.2008 passed by the
Executing Court in Darkhast Application No. 147 of 2002. Executing
Court while rejecting the objection of the petitioner directed
issuance of warrant under Order 21, Rule 30 of the Code of Civil
Procedure upon payment of process fee.
2. On 23.06.2008, the
learned Single Judge of this Court passed the following order :-
1. With reference to the
observations made in the impugned order dated 15.2.2008, with regard
to cheque No.859014 dated 16.4.2003 for the amount of Rs.23,050/- was
not duly served upon or received by the plaintiff because the
plaintiff was not available at the address, on which the cheque was
forwarded. Mr. Metha, learned advocate, submits that the petitioner
has now come to know that the cheques have, subsequently i.e. in
2003, been received by and encashed by the plaintiff. Hence, in the
the submission of Mr. Mehta, the question of executing decree does
not arise. He submits that it is in view of the said observation made
in the impugned order that the said order dated 15.2.2008, is passed,
however, in view of the aforesaid development, the cause of action
for execution does not survive.
2. Hence, issue NOTICE
returnable on 15.7.2008. In the meanwhile, ad interim relief
in terms of para 12(C) is granted till then.
3. Learned advocate Mr Bipin
Mehta for the petitioner submitted that according to the petitioner,
though the decreetal amount was already paid to the plaintiff, this
fact was not known to the learned advocate of the petitioner and
therefore, could not be brought to the notice of Executing Court.
4. If the petitioner herein
brings the above aspects of the matter to the notice of Executing
Court by filing necessary proof of decree already having been
satisfied, the Executing Court shall take into consideration before
proceeding further pursuant to the order dated 15.02.2008. Until
such time, such request of the petitioner shall be considered and
disposed of, interim order passed by this Court on 23.06.2008 shall
continue.
5. With these directions,
the petition stands disposed of.
(Akil
Kureshi, J.)
mrpandya*